Main Page
Electronic Rights Management 'Introduction' Electronic Rights Management (ERM) refers to management and safeguards to control the processes and distribution of digital information. Azad, Mir, Abu Hasnat Shohel Ahmed and Asadul Alam 'Digital Rights Management' (2010) 10(11), International Journal of Computer Science and Network Security 24 ERM is a relativeley recent development and as such its definitions are broad and the body of research is narrow. Becker, Eberhard, 'Definitions, Aspects and Overview' in Eberhard Becker, Niels Rump, Willms Buhse and Dick Gunnewig (eds) Digital Rights Management: Technological, Economic, Legal and Political Aspects ''(Springer-Verlag: Berlin 2003)Frankel, Susy and Daniel Gervais, ''The Evolution and Equilibrium of Copyright in the Digital Age (Cambridge University Press: Cambridge 2014)In context to the discussion of video games and ERM, it is essentially various software-based anti-piracy systems to protect information to certain individuals. In context to Australian law, ERM is referred to as such under the Copyright Act 1968''Copyright Act 1968'' (Cth) and will be described as such for the purposes of this wiki (it is often referred to as Digital Rights Management colloquially, as well as officially in the United States of America). Copyright Act 1968 (Cth) s 116b ERM is a form of encryption strategy commonly used in multimedia files and softwares such as music, videos and other electronic files. It is a form of cryptography in digital spaces. Its purpose is to protect information generated by publishers, by designing protocols and encryption programs that limits the accessiblity of information and most importantly, who and how the information is accessed.Talukder, Asoke and Manish Chaitanya, Architecting Secure Software Systems (CRC Press: Boca Raton Florida 2009 ERM includes various security protocols which are applicable to any form of digital information. An example is region-encoding security measures on DVDs to control its distribution in various areas of the world.Puckett, Jason 'Digital Rights Management as Information Access Barrier' (2010) 34-35 Progressive Librarian 11-12 More recently, ERM discussions centered around video games focuses on themes of video game privacy on the internet and privacy concerns in regards to the exploitation of customer information and metadata to third parties. The pervasiveness of ERM raises many questions about its intentions, operation and implications, particularly something that operates over a range of different products and producers. Electronic Rights Management and Intellectual Property Law One of the most controversial aspects of ERM systems is their standing amongst existing property laws. It could be argued that ERM dilutes the vital legal concept of ownership.Lemley, Mark 'Property, Intellectual Property, and Free Riding' (2005) 83 Texas Law Review When a customer purchases a product through a ERM filter, they actually do not purchase that product in the same sense that they would purchase a product from a supermarket.Rosenblatt, Bill, Digital Rights Management: Business and Technology (John Wiley and Sons: New York) 2001 Instead, they purchase a license. The license provides the customer with access to the product under specific terms and conditions. This raises a broader question as to what this means for the principle of property ownership. In many ways this is similar to the operational concept of intellectual property (IP): the producer/author of the intellectual property retains the copyright authority. ERM applied to an academic database thus fits quite logically into the existing legal framework. A customer purchases a license to access the intellectual properties contained within, but does not have any claim to ownership of the content. Copyright law allows the customer to use the property in a variety of ways, but claiming ownership is not one of them. ERM is definitely responsible for complicating issues of digital content ownership its use as a reference in another academic work is allowed, and so these academic databases are actually a good example of how an ERM system can co-exist with current property and intellectual property law.Perry, Mark and Thomas Margoni, 'From Music Tracks to Google Maps: Who Owns Computer Generated Works?'(2010) 26 Computer Law and Security Review 621The principle is less congruent when applied to physical media, and this has even been rules unconstitutional in France.Helberger, Natali 'The DRM Graveyard: A Brief History of Digital Rights Management in Music' retrieved 28/5/2015. See also Christopher v Warner Music for case detailsThe nature of these databases is congruent with the ‘fair use’ principle which does apply in Australia. As is the case in the majority of applicable jurisdictions, the concept of fair use is actually quite vague. This appears to be an intentional decision to allow its interpretation and application to be as broad as possible, as well as allowing fair use to be argued for on an individual cases basis. Video games is one area of consumer goods which features multiple layers of ERM safeguards. On the surface, region-locking is vastly integrated in physical copies of the game. Furthermore, online distributors may also include additional ERM which include authentication and metadata collection on top of third party ERM which acts as a second layer of ERM established by the game publishers. A more recent case is the controversial issue of unwarranted installation of monitor programs from game developers which involves the online game Archeage and the anti-hacking software Hackshield. See also: ''Archeage/Hackshield Controversy.'' Australian Fair Trading/Fair Use Law Another controversial aspect involves the monetisation of video content that features the use of an IP owned by another entity. The practice is known as a ‘let’s-play’ and these videos have become hugely popular in recent times. They are controversial as they do not appear to satisfy any pre-existing condition for fair use, and yet the attitude of IP owners towards let’s-plays has seen this content develop a de-facto fair use status. This was recently challenged by Nintendo who announced that they would file copyright infringement notices with YouTube for any monetised video that features the use of a Nintendo IP unless Nintendo has pre-approved the video and receives a significant portion of the profit. This further called into question the legal status of let’s-plays in the context of fair use and intellectual property. There are legitimate arguments to be made on both sides: Nintendo does own the rights to the property and so are entitled to decide what happens to it. The hypothetical let’s-play content creator owns that specific piece of content, regardless of whose intellectual property appears in the video.The issue becomes even more unclear if the let's-play features original commentary. The creator of the video quite clearly owns the moral rights to the commentary, but the operation of the current framework suggests that they do not necessarily own the video content. It remains unclear to what extent these two legal principles of ownership can co-exist. By enforcing this policy YouTube is essentially endorsing Nintendo’s stance that they own (or at least have a legitimate ownership claim to) all content that features a Nintendo intellectual property. YouTube should be seen as a powerful platform for companies such as Nintendo to gain exposure and free publicity from let's-plays and reviews from online commentators and entertainers. But it seems that Nintendo lacks the hindsight to see its potential and over the past few years have been shutting down let's-play content which has infuriated many of its fans. This occurred in parallel to Nintendo introducing its 'Nintendo Creators Program' which limits reviewers and YouTube entertainers to post content for selected list of games and allows Nintendo to monetise on their videos. Makuch, Eddie,'' Prominent streamer calls Nintendo "Anti-Youtuber" and "F**king Greedy"'' (Apr 6 2015) Gamespot, Nintendo, Nintendo Creators Program (May 31 2015) Nintendo, These circumstances are particularly difficult to understand when fair use is accounted for. As mentioned before, fair use is allowed for the use of review and criticism. If a video features a review and/or criticism of a Nintendo IP through the use of original commentary, does this then negate Nintendo’s ability to claim the video as their own? Throughout this process YouTube made use of an automated digital content identification system. This becomes a third party ERM system, and raises questions about the fundamental nature of the rights management aspect of ERM. Initially, ERM systems were designed and implemented to restrict access to certain documents/content and to limit the rights of those with access to copy and/or reproduce the content. The role of ERM appears to have expanded in the more modern context where ERM systems are now being used to provide a default decision in a case of ownership dispute. It appears that YouTube’s ERM is providing ownership rights (at least temporarily) to any person/company/entity that provides them with a copyright infringement noticeas the video will be removed until the dispute has been investigated. YouTube appears to do this to prevent itself from being assigned any liability, were any sort of civil case to arise as a result of the dispute. In doing this, YouTube has succeeded only in highlighting the difficulties of protecting and balancing the rights of two different interest groups in the modern context of intellectual property law, particularly when attempted from the position of an actively involved third party. For further information on Australian consumer law and its conflict with ERM systems and the way they operate, also see: Australian Competition and Consumer Commission v Valve Corporation. Electronic Rights Management and Public Domain Another important issue has been raised with respect to ERM and digital intellectual properties, particularly that of public domain. Public domain is a legal principle whereby the expiration, cancellation, forfeit or revocation of the intellectual property rights of an idea/concept/product sees it become available for use by the public. This removes all claims of ownership and allows for free use of the intellectual property without concern for licensing (a key distinction between public domain/free use and ‘under license’ intellectual property) fees or potential copyright violations. Electronic rights management systems have been identified as problematic to the continued operation of this principle. In the case of the original holder of the intellectual property allowing their intellectual digital property rights to expire or deciding to forfeit them, it is still unclear what this would mean for the owners/operators of the ERM platform that provide the product to customers. They might well feel that they are entitled, at least in part, to the rights of that product. At the very least it seems that they might make a legitimate claim to the IP rights; they have presumably negotiated a contract with the holder of the rights and provided a service to assist in its distribution, in the process becoming a de-facto publisher of the work and giving them some authority over the product (not enough to override that of the rights holder, but enough to make a legitimate claim to the property if there is no holder). Questions also arise as to how much influence over the game the owner of the ERM system has. Do they have enough influence to impinge upon the moral rights of the holder of the property rights? This is of particular interest when it comes to the moral right of the integrity of the work. This states that the intellectual property is to be free of alteration or distortion from the original concept as defined by the owner. Even in the event that the copyright is completely handed over to a third party, the creator retains the moral rights. Moral rights also state that anything that detracts from the creator’s relationship to the work is a violation of these rights. It must be questioned whether ERM systems respect and uphold these moral rights, particularly when it comes to how the product is marketed and the kind of image that is presented to customers. This can be seen in the case of Steam, where Valve is responsible for the marketing of the game. Their refusal to provide refunds to unsatisfied customers can prove problematic as it reflects poorly on the feedback provided about the product and the creators by users to other potential customers. Electronic rights management systems raise another question in relation to public domain: that of the longevity of an IP if the creator company or the operator of the ERM ceases to operate. If the ERM is the only means of accessing this product, what happens to it? Recently, the IP belonging to Konami known as ‘PT’ was cancelled. The game was only ever released digitally through Sony’s pseudo-ERM system (it is primarily an online digital store, but it has some strong ERM elements) known as the ‘Playstation Store’. The cancellation resulted in the game being pulled from the store and being made unavailable for download even by those who had already ‘purchased’ it (the game was available for free but only to those with a paid membership to Sony’s online gaming platform PS+). The third party ERM applied to this title, combined with the digital distribution method, has denied the PT intellectual property the opportunity to ever enter the public domain. Given that Konami pulled funding and cancelled the project, if it had been distributed by any other means, or if Sony has not made it unavailable, it might have been a public domain property at some point in the future. This might seem like a minor issue of ERM systems, but public domain is an important concept of copyright law.Guibault, Lucy and Bernt Hugenholtz, The Future of Public Domain: Identifying the Commons in International Law (Kluwer Law International: The Netherlands 2006) In an area of law that mainly restricts the rights of the public to copy, public domain is one of the few provisions that expand the common right to copy. It is one of the ‘traditional safety values’ of copyright law and serves to create a balance so that copyright law does not operate to serve copyright holders exclusively. It also serves an important role in preventing the maintenance of a monopolySherman, Brad and Lionel Bentley, The Making of Modern Intellectual Property Law: The British Experience (Cambridge University Press: Cambridge 1999) Levine, David and Michele Boldrin, Against Intellectual Monopoly (Cambridge University Press: Cambridge 2008) over an important idea if that monopoly is to the detriment of the public interest. In the case of Konami and PT, it appears that Sony has violated these principles as the only real loss suffered was that of the public. There are wider questions in this area. If a third party ERM provider were to cease to operate (and their ERM system was the only way to access a work/idea/product) it is unclear what will happen. Is that idea to be lost forever? Does the ERM provider have a responsibility to ensure it remains available? Should it be returned to the original creator to re-negotiate its distribution with somebody else? Should open access be considered? These are questions that have not arisen in a high profile scenario as of yet, but with digital storage and distribution becoming the preferred option for most creators and companies it will become an issue in the (near) future. Copyright law is poorly equipped to deal with such an issue at the momentCoyle, Karen 'The Automation of Rights' (2006) 32(2) Journal of Academic Librarianship 326Litman, Jessica, Digital Copyright (Prometheus Books: New York 2001), and the first high profile case in this area will likely lead to the development of a new copyright framework for addressing these issues. ERM, Anti-Piracy and Risk Society ' The overall aim of electronic rights managementis to provide the creators and distributors of digital content with more authority and control of their properties. This can be seen in the controversial United States legislation known as the Digital Millennium Copyright Act (DMCA)Public Law No. 105-304, 112 Strat. 2860 (28 October 1998) . In Australia there is legislation that serves a similar purpose (see Section 116B of the ''Copyright Act 1968 ''Cth)''Copyright Act 1968 (Cth) s116B but is is not as severe nor as enforceable as the DMCA.Many jurisdictions have similar regulations but none are more invasive or enforceable than the DMCA. The US has attempted to apply the DMCA to copyright violations of non-US citizens but have been unsuccessful (see United States v ElcomSoft and Dmitry Skylarov) These pieces of similar legislation across international contexts also highlight a key aspect of the added control; that of counter-piracy. In fact, electronic rights management has become synonymous with anti-piracy measures and it is a key reason for its growing prevalence and its increasing popularity with digital content creators and providers. . However, recent research has been suggesting that the presence of ERM measures does not reduce piracy levels.Vernik, Dinah, Devarat Purohit and Preyas Desai, 'Music Downloads and the Flip Side of Digital Rights Management'(2011) 30(6) Marketing Science''In fact, some evidence suggests that attempts at electronic rights management might even increase piracy.Biddle, Peter, Paul England, Marcus Peinado, and Bryan Willman, 'The Darknet and the Future of Content Distribution' (2002) 6 ''ACM Workshop on Digital Rights Management ''54There can be only speculation as to why this occurs, but it seems that many ERM techniques are seen as anti-consumer (although this applies to copyright law as a whole).Martin, Greg, Corinna Sorenson and Thomas Fraunce, 'Balancing Intellectual Monopoly Privileges and the Need for Essential Medicines'(2007) 3(4) ''Globalisation and Health Perhaps this is related to an even wider implication: that of the risk society. Consumers who are willing to pay full price and access the content legally are still subjected to the ERM measures, which makes them feel like they are being accused of dishonesty (specifically piracy, or even fraud). This is representative of the shift towards the risk society as a broader phenomenon, whereby individuals that represent a largely unknown quantity are prescribed characteristics of their contemporaries, or of their potential wrong-doing (the ‘risk’ that they pose). The risk society is already a controversial topic, with many critical of the depth and frequency of privacy invasions. These criticisms are often applied to an issue as serious as terrorism. An issue like terrorism uses the severity of the potential outcome as justification for the risk management techniques which include invasions of privacy and violations of other personal rights for the greater good. When these interventions are applied to something less significant such as an academic journal database or a digital video game marketplace, the justifications are less convincing. This leads to a feeling of resentment and mistrust from consumersMarchand, Andre and Thorsten Hennig-Thurau, 'Value Creation in the Video Game Industry: Industry Economics, Consumer Benefits, and Research Opportunities' (2013) 27(3) Journal of Interactive Marketing 141Hennig-Thurau, Thorsten, Victor Henning and Henrik Sattler, 'Consumer File Sharing of Motion Pictures' (2007) 71(4) Journal of Marketing 1towards the companies responsible, and other established theories of crime and deviance show that this could well lead to greater levels of piracy and fraud. The issue of a lack of a reasonable justification became a significant issue around the time of Edward Norton’s exposure of the National Security Agency’s (US) Prism operation. Prism involved collecting and analysing mass communication information on American citizens, without reasonable suspicion of any crime being committed or planned. These leaks indicated that Microsoft’s Xbox peripheral known as the ‘Kinect’ had been used as a means of accessing this material, and the camera and microphone in the product had been used to record and document the faces and voices of some Microsoft customers.See 'NSA Prism program taps in to user data of Apple, Google and others', The Guardian: Glenn Greenwald and Ewan MacAskill, 8 June 2013, retrieved 29 May 2015 See also 'NSA domestic spying program makes xbox one even scarier', Forbes: Erik Kain 6 July 2013, retrieved 29 May 2015 Access would also have been available to the financial information of some customers through the Xbox Live marketplace, and perhaps even the email or residential address of many. This serves as a clear example of the negative impacts that ERM and other related digital surveillance techniques can have on an individual level.Branscomb, Anne,'Anonymity, Autonomy and Accountability: Challenges to the First Amendment in Cyberspace' (1995) 104 Yale Law Journal, and why ERM systems are considered to be problematic by many. ERM also presents a very fractured and disparate set of practices with no concept of best practice and very few commonalities across variants.Tang, Puay 'How Electronic Publishers are Protecting Against Piracy: Doubts About Technical Systems of Protection'(1998) 14(1) The Information Society 19 ERM strategies have evolved in various ways in the gaming industry. Traditionally, computer-based games always have greater levels of ERM compared to playing video games on console. The implementation of individualised CD Keys is a typical strategy to prevent 'outsiders' from accessing services and digital information. Computers are run on operating systems where hackers are capable of using its interface to decrypt and extract the software out of the game disc itself. In contrast, it is much harder for console gamers to pirate games as the console platform are designed to run specific range of tasks with safeguards which protects their product. Segmenting users of digital services and information from those who are accessing it using illegal channels is an old ERM model which has evolved over the past decade. Piracy can still occur when legitimate users can re-distribute digital information by decrypting or sharing video game programs through P2P services. This has led to the development of ERM systems which forces users into key channels to access services with invasive ERM schemes which limit the privacy of users at unprecedented levels. For another example of an electronic rights management scheme in a security and surveillance context, see Sony BMG rootkit incident . '''Digital Purchasing For information on specific ERM digital platforms and how they apply their anti-piracy measures, see: Platform-based ERM. Alternatives to ERM Cloud Technology To an extent, cloud technologies and services have a potential to act as an alternative to ERM. With the emergence of such services as Steam and digital stores, cloud technology has the potential to become a key element in the ongoing war against piracy in the gaming industry. In an old interview with the CEO of gaming developer and publisher, Blizzard, Mike Morhaime sees unlimited installations as key areas which can help provide better gaming experiences to players. Morhaime believes that installation limitations should not be implemented since people have multiple platforms and systems at their disposal. To access games, players only need a single registered account manage and re-install games instead of a physical copy, and all that is required is potentially an internet connection to verify the user's authenticity. Outside of being one of the leading video game publisher in the world, Blizzard also has one of the most effective ERM system which deters internet pirates from stealing their games. Battle Net is a digital distribution service developed by Blizzard over a decade ago as an online platform for players to access online multiplayer. For hackers and online pirates, Battle Net is a form of ERM which is difficult to undermine as the selling point of many of Blizzard's gaming titles such as Warcraft, Starcraft and Hearthstone is its online multiplayer experience. Battle Net is inaccessible for players who do not have authentic access codes to the game. This becomes difficult for hackers and pirates who have an illegitimate copy of the game as they can be easily detected and locked out. Additionally, cloud gaming is a form of ERM which addresses some piracy concerns from publishers. Essentially cloud gaming refers to the way game processes and graphics are done through cloud-gaming servers which projects a game as video with controls/commands linked to the player's computer. The way cloud gaming works is similar to online video streaming whereby installation process would not be required as all the game processing would be performed through online servers. An advantage for cloud gaming is its potential to limit pirates as the game would be required to run through remote servers instead of being dependent on the user's computer hardware to process the game. Last year Microsoft demonstrated some of the benefits to cloud gaming showcasing a new game title, Titanfall and how some of its computer processing load has been delegated to the cloud-gaming server.Makuch, Eddie 2014, Microsoft shows off how it believes the cloud will change gaming forever (April 4 2014) Gamespot On the other hand, a key reason why cloud gaming is not as widely adopted as it is hoped and its disadvantage is bandwidth limitations. As the game would be processed and run through cloud-gaming services, a stable connection would be necessary to play the game. The implementation of cloud gaming would be a challenge especially for people who live in locations with limited internet. In fact, greater internet connection would be necessary to process cloud-powered games. Hoffman, Chris, HTG Explains: What is cloud gaming and is it the future? (April 21 2013) How to Geek There is also the issue of greater surveillance as it would give developers and publishers have greater potential to monitor and track player's movement as long as they are playing the game through their cloud servers. The future of ERM is unclear, at least in terms of actual innovation. What is clear is that content creators support the use of these systems, regardless of their actual effects. It offers them a feeling of security and added control over their content/products. ERM looks set to increase in scope and will be ubiquitous across all digital content platforms in the near future. It is hoped that by that point there will be more of a balance between the interests of creators/owners and consumers, as the system is currently heavily biased towards the creators. Perhaps the fact that piracy will never cease to be problematic means that a true balance cannot be achieved using ERM techniques. Footnotes 'Credits' This wikipedia is researched and written by Marcus Wong (z3329336) and Liam Nicholas (z3373866). This was developed as part of LAWS8037 - Surveillance Security and Democracy, a post-graduate course in University of New South Wales. For more information please contact Dr Alana Maurushat, email: [mailto:a.maurushat@unsw.edu.au a.maurushat@unsw.edu.au]